Cannon v. Oklahoma Engraving Printing Co. , 119 Okla. 196 ( 1926 )

The sole question presented by this proceeding is whether the Industrial Commission was legally authorized to enter an award on October 1, 1925, against John N. Cooke, Juliet G. Cooke, and Edward H. Cooke, either or all of them, upon the testimony taken July 16, 1925, as a nunc pro tunc order to correct alleged errors in the entry of the original award of June 12, 1924.

It is elementary that nunc pro tunc orders can only be entered for the purpose of correcting errors or misprisions in previous orders or judgments based on proceedings theretofore had. Courtney v. Barnett, 65 Okla. 189, 166 P. 207; Jones v. Gallagher, 64 Okla. 41, 166 P. 204; Bristow v. Carrigar,37 Okla. 736, 132 P. 1108; In re Petition of Breeding,75 Okla. 169, 182 P. 899.

It is clear from the statement of the proceedings had in this matter before the Industrial Commission, that when the award of June 12, 1924, was entered, it was entered upon the evidence then before the Industrial Commission, and that said award was based upon that evidence and correctly stated and reflected the findings of fact and conclusions of law made and reached by the Industrial Commission after a full hearing on claimant's application for compensation. No proceedings were taken to review that award in this court. The respondent in that proceeding did file a petition for rehearing before the Industrial Commission, but rehearing was denied and the award became final. Claimant was satisfied with the award made, and only became dissatisfied when an execution was returned nulla bona, and it was ascertained that the claim for compensation had been prosecuted against a defunct corporation.

What the claimant's remedy may be under the situation here presented, if she has any, is not before this court for determination in this proceeding. It is clearly evident that, as a matter of law, the order of the Industrial Commission denying the motion for an award of compensation by a nunc pro tunc order against individuals who were strangers to the original proceedings and to the original award, is correct. In the case of Marker, Adm'r, v. Gillam, 80 Okla. 259,196 P. 126, this court quotes with approval from the case of Perkins v. Hayward (Ind.) 31 N.E. 670, the following language, which states succinctly the extent and limits within which a court is authorized to enter nunc pro tunc orders:

"A nunc pro tunc entry in practice is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake."

This language unquestionably correctly states the uses and purposes of a nunc pro tunc order. No such situation is presented by the record in the instant proceeding, but on the contrary it is sought by a nunc pro tunc entry to have an award made against persons who were not in contemplation of the claimant, or of the tribunal passing upon her claim at the time of the original award. This may not be done.

For the reasons herein stated, and upon the authorities herein cited and quoted from, the order of the Industrial Commission of October 1, 1925, denying the motion of claimant for an award nunc pro tunc against strangers to the original record, is in all things sustained.

By the Court: It is so ordered.